Stewart v. State, 92-DP-00921-SCT

• Decision Date: 28 September 1995
• Docket Number: No. 92-DP-00921-SCT,92-DP-00921-SCT
• Citation: 662 So.2d 552
• Parties: Christopher STEWART v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 552

662 So.2d 552

Christopher STEWART v. STATE of Mississippi.

No. 92-DP-00921-SCT.

Supreme Court of Mississippi.

Sept. 28, 1995.

W.S. Stuckey, Jr., Stuckey & Stuckey, Greenwood, William C. Trotter, III, Garrard & Trotter, Belzoni, for appellant.

Michael C. Moore, Attorney General, Marvin L. White, Jr., Assistant Attorney General, Charlene R. Pierce, Sp Ass't Attorney General, Jackson, for appellee.

EN BANC.

SULLIVAN, Justice, for the Court:

Christopher Stewart was indicted and charged with having been offered money by, or receiving money from, Ricky Selders for the January 7, 1991 murder of Roderick Ball in violation of Miss.Code Ann. § 97-3-19(2)(d) (1972), and with conspiracy to commit capital murder in violation of Miss.Code Ann. § 97-1-1 (1972). Trial commenced on August 10, 1992 in the Circuit Court of Humphreys County, and the jury convicted Stewart of capital murder and sentenced him to death after finding the following two aggravating circumstances: (1) the capital offense was committed for pecuniary gain, and (2) the capital offense was committed to disrupt or hinder the enforcement of laws. Stewart was also found guilty of conspiracy to commit capital murder and sentenced to twenty

years for this charge. The trial court denied Stewart's motion for a new trial, or alternatively, for a j.n.o.v. on August 31, 1992. Because this case must be reversed on the merits, only the following assignments of error warrant discussion:

I. THE TRIAL COURT DEPRIVED CHRISTOPHER STEWART OF HIS RIGHT TO DUE PROCESS OF LAW IN VIOLATION OF THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES AND ARTICLE 3 § 14 OF THE MISSISSIPPI CONSTITUTION OF 1890 BY ARBITRARILY DENYING HIM USE OF A PEREMPTORY CHALLENGE.

II. CHRISTOPHER STEWART CANNOT BE PROSECUTED FOR BOTH § 97-3-19(2)(D) CAPITAL MURDER AND CONSPIRACY TO COMMIT CAPITAL MURDER CONSISTENT WITH THE DOUBLE JEOPARDY CLAUSES OF THE STATE AND FEDERAL CONSTITUTIONS.

III. THE TESTIMONY OF WILBERT ANDERSON WAS INADMISSABLE HEARSAY, WAS NOT RELEVANT, AND WAS ERRONEOUSLY ALLOWED INTO EVIDENCE IN VIOLATION OF THE CONFRONTATION CLAUSE OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

IV. THE TRIAL COURT ERRED IN FAILING TO ALLOW CHRISTOPHER STEWART TO INTRODUCE EVIDENCE AT SENTENCING CONCERNING THE SENTENCE OF HIS CODEFENDANT.

V. THE SENTENCING VERDICT INSTRUCTION WAS DEFECTIVE IN A MANNER WHICH VIOLATES STATE LAW AND THE EIGHTH AMENDMENT.

THE FACTS

Roderick Ball occasionally worked as a paid confidential informant assisting North Central Mississippi Task Force agents apprehend drug dealers. He allegedly purchased cocaine from Ricky Selders in a sting operation which led to Selders' arrest and subsequent indictment on cocaine charges. Ball became an essential witness for the State in the Selder's case which was originally scheduled for trial on July 26, 1990.

Selders visited Darnell Toy at Union National Life Insurance Company and took out $15,000 worth of life insurance on Roderick Ball in October of 1990. It was against company policy to permit anyone to name themselves as a beneficiary when applying for a life insurance policy, however, Selders and Toy were old acquaintances. Toy permitted Selders to forge Ball's signature and designate himself the beneficiary. Toy testified that Selders tried to collect on the policy the same night Ball was killed, but no one ever collected any money or filed a formal claim against the policy. Union National fired Toy for knowingly selling the forged policy.

Wilbert Anderson testified that Selders stopped him in December of 1990 at a gas station in Belzoni and requested that he come by his house. Anderson testified that, the next day at Selders' house, Selders offered him $5000 to kill Roderick Ball to prevent Ball from testifying against Selders in court on the cocaine charges. Anderson said he refused the offer even though Selders increased the offer to $10,000.

Debra Ball ("Debra"), Roderick Ball's widow, testified that Selders, Stewart and her husband were in and out of her house all day long on January 7, 1991. Stewart and Selders often sold drugs to her and her husband since they all smoked crack cocaine. Debra said that around 4:30 p.m., after Selders and Stewart had left her house, she walked to Selders' house to inquire about getting some cocaine. She found Stewart and Selders sitting in Selders' black IROC sports car outside of his house when she arrived. She claimed that Stewart and Selders were insistent on learning the whereabouts of her husband who was at home with the children at the time. Debra said that Selders told her to Debra Ball heard someone drive the IROC away before Selders entered the neighbor's house about five minutes later. She assumed that Stewart was driving the IROC because Stewart and Selders had been sitting in the car a few minutes earlier. She testified that the car was gone during the time she talked with Selders at the neighbor's house.

go the neighbor's house to wait for the cocaine.

At the neighbor's house, Selders gave her the cocaine which she immediately smoked. She testified that she when she went back to Selders' house a second time to get more cocaine, Selders was home but his car was still gone. She left and returned to his house a third time only to find it empty. She testified that the man she saw leaving in the IROC had light skin and was wearing red, and that Christopher Stewart was the only one she knew who fit that description on the day of the murder.

Linda Mack said that she was driving south on Old Highway 49 on January 7, 1991 at about 5:15 or 5:20 p.m. when she saw a black sports car pulled off on the right side of the road facing south. Mack noticed a white object in the open car trunk. Mack said she did not recognize the car until after she had passed it, but recognized it as Selders' car because he was her sister's boyfriend. After she passed by the car, she stopped and backed up to give assistance. She testified that she drove off again after seeing Stewart in her rear view mirror waiving her to go ahead. She never saw Ball, nor heard any gunshots when she stopped.

Brady Roberts noticed the victim lying on the side of the road between 5:10 and 5:30 p.m. on Old Highway 49 on January 7, 1991. Roberts stopped, stepped out of his car and walked to within four feet of the victim. Ball's mouth was twitching, but Ball did not respond to Roberts. Marcy Hale and Charles Rowland also stopped by the side of the road during this time period after seeing the victim. Roy Joshlin testified that he was hunting at approximately 5:00 p.m. on that day approximately one quarter of a mile away from where the victim was found. He said that while hunting, he heard a single gunshot that sounded like a .22 caliber as opposed to a deer rifle. He then heard a car drive away. On his way home, Joshlin stopped where the victim was lying.

Sheriff McMillian was returning from deer hunting when he saw Deputy Coleman stopped by the victim on the side of the road. McMillian stopped and identified the body of Roderick Ball whom he knew from previous undercover narcotics operations. McMillian recovered a live round of ammunition, one spent round at the victim's knees, and another spent round beneath the victim's head. Another live round was later found at the scene.

The autopsy revealed that Ball was shot three times in the right side of the head and once in the back of the head. It concluded that the shots were fired from more than one and one-half feet away. Bullet fragments were recovered in the autopsy, and blood samples were taken. Steven Hayne performed the autopsy and said that the manner of death and the angle of the wounds were consistent with the victim having been shot once in the back of the head while bending over, and three times in the side of the head after falling down.

Charles Scarborough of the Mississippi Highway Patrol examined Selders' IROC under a search warrant. In it was found a white towel and a brown chamois cloth in a bucket in the trunk, a white pillbox containing one .25 caliber automatic cartridge, and some drug paraphernalia in the trunk. Scarborough testified that the rear hatchback window of the IROC was unusually clean when compared to the remaining windows in the car. Laboratory tests revealed type A human blood on the white towel removed from the IROC. Ball, Selders, and Stewart all had type A blood.

Michael Allen with the Mississippi Crime Laboratory identified the casings recovered from the scene as .25 caliber casings of the brand Pans Metallic Corporation ("PMC"). This was the same brand as those found in Selders' vehicle. Allen testified that PMC was an imported brand not nearly as common as the American brands such as Remington, Federal, and Winchester. Allen concluded that the fragments removed in the autopsy were fired from a .25 caliber automatic. Microscopic tests revealed that the two empty cartridge cases found at the scene Eddie Smith, a former employee at a rental company, testified that during the first week of January 1991, he went to Stewart's house to check on Stewart's account and observed a silver pistol with a pearl handle which appeared to be .25 caliber. Smith recalled that Stewart quickly picked up the pistol and placed it in his jacket pocket when he noticed that Smith saw the gun.

were fired in the same exact weapon. No murder weapon was ever recovered.

Jerriel Allen, one of Stewart's fellow inmates at the Humphreys County jail, testified that Stewart confessed in jail, as follows: Stewart drove to Ball's home in the IROC and picked up Ball. They returned to Selders' house where they got in a dark blue four-door Oldsmobile to go smoke cocaine. They drove towards Isola, Mississippi but stopped along the way because Stewart pretended that he needed to urinate. Stewart climbed out of the car and asked Ball to check the car to see if it was leaking gas. Stewart then shot Ball three...